Part 16 Powers of entry inspection and seizure

Part 16 of the Act which is modelled on Part 5 of the Food Act 2008, provides authorised officers with robust powers including powers of entry, inspection, search and seizure.

What powers does an authorised officer have to enter, inspect, search and seize?

Section 240 of the Act sets out the general powers of authorised officers for the purposes of the Act. These include:

powers of entry and inspection

powers to take samples

open and examine equipment

take copies of documents

stop vehicles

take photographs, films, audio or visual recordings

take readings or measurements

make sketches or drawings and

require persons to provide information or answer questions.

Refer to section 240 of the Act for the full list of powers.

Authorised officers may exercise one or more of these powers at any reasonable time.

What does reasonably suspects mean?

The term reasonably suspects is used throughout Part 16, Division 1 in regards to the exercise of authorised officer powers.

Reasonably suspects has the meaning given in section 4 of the Criminal Investigation Act 2006 (external site), which requires that there must be objectively reasonable grounds for suspicion at the relevant time, even if those grounds are subsequently found to be false or non-existent.

Powers of entry

Powers of entry during an immediate public health risk

In addition to the general powers of entry provided for under section 240, an authorised officer may at any time enter and inspect any premises (including a residential premises) if the authorised officer reasonably suspects:

there is an immediate public health risk connected with the premises and

the entry is necessary to investigate, prevent, control or abate the risk

An immediate public health risk is generally one where there is an imminent or existing risk of harm to public health that is associated with a contravention of the Act

What if there is no immediate risk to public health?

In regards to the general powers of entry provided under section 240(1), where there is no immediate public health risk, and the premises is primarily used for residential purposes an authorised officer may only enter after the officer has obtained the informed consent of the occupier of the premises or under the authority of a warrant (section 240(3)).

How to obtain informed consent from the occupier?

To obtain consent, the authorised officer may enter the part of the premises that the authorised officer reasonably considers members of the public would ordinarily enter. For example, entry may be to a front door or open area.

Typically, an authorised officer should not enter a dwelling, or enter through a structure (such as a building, wall, fence, water reservoir or drain) without the occupier’s consent or a warrant.

When requesting consent, the authorised officer must inform the occupier:

of the powers that the authorised officer wants to exercise in respect of the premises

of the reasons for wanting to exercise those powers and

that the occupier may refuse entry (section 240(4))

The authorised officer should also show their ID card (certificate of authority).

Does consent need to be in writing?

No. Consent can be made verbally or in writing.

Can an occupier withdraw their consent?

Yes. Where an authorised officer has entered a premises after receiving the consent of the occupier, the occupier may withdraw their consent at any time. If this occurs, it is recommended the authorised officer leaves the premises upon the consent being withdrawn.

What if consent isn’t provided?

Unless there is an immediate public health risk, where consent is not given an authorised officer cannot enter the premises except under the authority of a warrant.

Can an authorised officer receive assistance?

An authorised officer may be assisted by a police officer or other person when exercising a power under section 240.

Power of seizure

What things can an authorised officer seize?

An authorised officer has the power to seize a range of ‘things’ once they have entered a premises.

The definition of ‘thing’ in the Act is very broad to ensure that most items an authorised officer reasonably suspects needs to be seized, can be.

A thing includes:

any vehicle, plant or machinery

any record

any substance

anything in, on or connected to a thing

Why would an authorised officer seize an item or thing?

An authorised officer may wish to seize a thing relevant to an offence under the Act if the officer reasonably suspects it may be forfeited under Division 2 of Part 16, or it is necessary to seize the thing to prevent it from being concealed, disturbed or lost; to preserve its evidentiary value; or to prevent it from being used in the commission of another offence under the Act (section 244(3)).

How to seize an item

To seize an item, the authorised officer can either leave the item at the premises where it is found or remove the item off site (section 257).

If the item is left at the premises, the authorised officer:

may place the seized thing in a room, compartment or cabinet at the premises and

may mark, fasten and seal the door or opening to that room, compartment or cabinet and

must ensure the thing is marked in a way that indicates that it has been seized under the Act.

If the item is to be taken off site, it is at the discretion of the authorised officer as to how the seized item is to be managed. However it is recommended that the item be stored in a secure place, where the item cannot be tampered with or create a risk to others and be marked to indicate the item has been seized under the Act.

Notification of seizure form

Once an authorised officer has seized an item, they must provide written notification to the person from whom the item was seized as soon as practicable.

The contents of the written notification must include specific details in accordance with section 258.

Refer to forms for an example notification of seizure template. This form can be modified to suit an enforcement agencies needs.

Warrants

What is a warrant?

A warrant is a document that allows an authorised officer to carry out certain acts that, without the warrant, may be unlawful. The issue of a warrant is a serious matter, because it authorises interference with the privacy, rights and liberty of an individual.

How can a warrant to enter premises be obtained?

Under section 246, an authorised officer may apply for a warrant to enter premises:

where the officer reasonably suspects that within the next 72 hours there is or will be a particular thing (including a document) that may provide evidence that an offence has been committed or is being committed under the Act (section 246) or

in order to exercise powers under section 240.

What is the process for obtaining the warrant?

Section 247 outlines the process. An authorised officer must make an application to a judicial officer in person, unless:

the warrant is needed urgently and

the applicant reasonably believes that a judicial officer is not available within a reasonable distance of the applicant